Where police shot and injured appellants after they left the scene of a traffic stop, the trial court correctly dismissed appellant’s claims of gross negligence, willful, wanton, and reckless negligence, battery, and that a police chief was liable for grossly negligent supervision of the police operation carried out by his officers.
Best and Lary are the appellants in this case. Police Chief Farr, one of the appellees, “authorized the surveillance of Best’s van, while occupied by Best and Lary. Lary had an outstanding warrant for her arrest, and she had made arrangements with Alexandria City authorities to turn herself in to the city jail the next day.
“A team of Arlington police officers acting under Chief Farr’s direction and control – including those named in the lawsuit – observed a hand-to-hand transaction between Best and another individual that they suspected involved illegal drugs. Best eventually parked his van on the side of a public street, near an intersection.”
The police boxed in Best’s parked van with unmarked vehicles. “Four of the officers, armed but not in uniform, approached the van. One of the officers began tugging on the driver’s (Best’s) window. No badges were displayed, nor was either Best or Lary told that they were under arrest.
“However, while the officer was pulling on the driver’s side window, he yelled to Best, ‘show me your hands!’
Best struck the vehicle in front and behind him and was able to escape. “One of the officers was directly in front of the van as it accelerated out of the mayhem. This officer, along with several of the other officers present, fired multiple gunshots at the van, striking Best five times and Lary once.”
Best could not continue to drive because of his wounds. He stopped the van and told Lary to flee. She did so and hid in a shrub. A police dog located her then bit her.
Best and Lary were arrested and taken to the hospital. Best was treated for five gunshot wounds “as well as another wound, purportedly a knife wound, which he attributes to the appellees, stating that one of them ‘likely’ inflicted the wound on him while he was unconscious.”
Best and Lary alleged claims for gross negligence, willful, wanton, and reckless negligence, battery, and a claim that Farr’s supervision of the police operation and the officers involved was grossly negligent.
Appellees demurred. Ultimately, the trial court sustained the demurrers. Best and Lary appealed.
“[T]he facts alleged and the video incorporated into the pleadings plainly support the trial court’s finding that the stop was supported by reasonable articulable suspicion and was therefore lawful. …
“Despite Best and Lary’s characterization of their encounter with law enforcement as an arrest, the stop carried out by the officers was not, in fact, an arrest, but merely a detention requiring reasonable suspicion. … The suspected drug activity provided reasonable suspicion for the stop.
“A law enforcement officer enjoys ‘special protection’ from tort liability, such as for a battery, when he or she is performing his or her duties in a lawful manner. …
“[T]o properly plead a battery claim against a law enforcement officer, a plaintiff must allege ‘a wrongful act,’ meaning that the law enforcement officer’s conduct lacked ‘justification or excuse.’”
The evidence shows that “Best and Lary were not engaged in any unlawful activity before the stop.
“Officer appellees approached Best and Lary, boxing them in with unmarked police vehicles. None of the officers identified themselves as law enforcement officers.
“However, the only reasonable inference to be drawn from the facts alleged is that Best and Lary both did, in fact, realize they were dealing with law enforcement officers. Only reasonable inferences will be credited to Best and Lary.”
The facts show that a police truck flashed its emergency lights and that one plainclothes officer shouted to Best to show his hands. Moreover, Best and Lary knew Lary had an outstanding warrant and that police might be looking for her. Further, none of the pleadings asserted that Best and Lary did not know they were dealing with police officers.
“Best and Lary were not privileged to defend themselves from an assault or threatened assault because, as we have concluded, the only reasonable inference is that Best and Lary were in fact aware that they were dealing with law enforcement officers. There is no right to resist an investigative detention. …
“Because Best was attempting to resist and flee from a lawful investigative detention, his own conduct was an intervening and superseding cause of the injuries he and Lary sustained. …
“The video shows that one of the officers was in immediate danger of being struck by Best’s van. Best and Lary argue in their brief that the officer depicted in the video was not actually in any danger and that he was able to easily side-step the oncoming van and avoid any danger.
“This rationale misses the point. Just because an officer was able to deftly avoid injury does not mean that he was not in immediate danger.”
“The trial court sustained officer appellees’ demurrer, holding that Best and Lary had not alleged facts sufficient to state a cause of action under theories of gross negligence or willful and wanton conduct. In doing so, the trial court held that officer appellees did not owe Best and Lary a special duty.
“Further, the trial court found, as a matter of law, that even if a special duty existed, the injuries to Best and Lary resulted from an intervening cause – Best’s actions in fleeing and placing an officer in immediate danger.” We agree.
For this same reason, Best and Lary’s other gross negligence claims fail.
Best v. Farr, et al., Record No. 0949-22-4; Lary v. Farr, et al., Record No. 0952-22-4, April 18, 2023. CAV (unpublished opinion) (Fulton III). From the Circuit Court of Arlington County (Fiore II). Benjamin J. Trichilo for appellants. Ryan Samuel for appellee. VLW 023-7-144, 22 pp.